vs. ) CASE NO. 94-6781
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its Hearing Officer, Michael M. Parrish, conducted a formal hearing in this case on March 15, 1995, at Miami, Florida.
This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes, (1992 Supp.). Specifically, the Respondent has been charged in a four-count Administrative Complaint with violations of paragraphs (k), (m), (n) and (p) of Section 489.129(1), Florida Statutes (1992 Supp.).
Although the Respondent was provided with written notice of the date, time, and place at which the formal hearing in this case would be conducted, there was no appearance by or on behalf of the Respondent at the formal hearing. The Hearing Officer has not received any communication from the Respondent at any time since the formal hearing.
At the formal hearing on March 15, 1995, the Petitioner presented the testimony of one witness and offered 14 exhibits. All of the Petitioner's exhibits were received in evidence. (One of the exhibits was late-filed on the
basis of leave requested and granted at the formal hearing.) At the formal hearing the Petitioner also voluntarily dismissed Count I and Count IV of the Administrative Complaint.
At the conclusion of the formal hearing the Petitioner requested that the parties be allowed twenty days from the filing of the transcript within which to file their proposed recommended orders. The request was granted. The transcript of the hearing was filed with the Hearing Officer on April 11, 1995. By memorandum dated April 18, 1995, all parties were advised in writing that the deadline for filing of their proposed recommended orders was May 1, 1995.
On April 24, 1995, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. The Respondent has not filed anything since the formal hearing. With the exception of a few editorial changes in the interest of clarity, the findings of fact which follow incorporate all of the proposed findings of fact submitted by the Petitioner.
Respondent is, and has been at all times material hereto, a licensed Certified General Contractor, having been issued license number CG C007303, by the State of Florida.
At all times material hereto, the Respondent was licensed to contract as an individual.
On September 18, 1992, the Respondent, doing business as an individual, contracted with Charles and Elba Williams (hereinafter referred to as "Customers") to reroof their dwelling and shed at 15205 SW 78 Place, Miami, Florida, for the price of Fifteen Thousand, One Hundred Seventeen dollars ($15,117.00).
On October 1, 1992, the aforementioned contract was amended to provide for the payment of half of the second draw before the second stage of the project was completed, and to provide for the payment of an additional Three Hundred and Fifty One dollars ($351.00) in materials.
On November 5, 1992, the aforementioned contract was amended to provide the Customers with a credit on the contract of One Thousand, Six Hundred Thirty Six dollars and Sixty Four cents ($1,636.64) for their purchase of roof shingles.
The revised contract price was Sixteen Thousand and Fifty Eight dollars ($16,058.00).
The Customers paid the Respondent Twelve Thousand, Two Hundred Seventy Seven dollars and Ninety cents ($12,277.90) toward the contract.
After receiving a credit on the balance due on the contract, the Customers owed Two Thousand, One Hundred Forty Two dollars and Thirty Two cents ($2,142.32) to the Respondent.
On September 23, 1992, the Respondent obtained roofing permit number 92-110050 for the Customers' project from the Dade County Building and Zoning Department.
The Respondent worked on the Customers' roof from September 23, 1992, through November 15, 1992, when the installation of the shingles was completed.
On November 19, 1992, the Respondent failed a final inspection performed on the Customers' roof by the Dade County Building and Zoning Department because the Respondent failed to supply Dade County with product approval information and manufacturer installation specifications for the ridge vent he had installed.
On November 24, 1992, the Respondent again failed a final inspection performed on the Customers' roof by the Dade County Building and Zoning Department for the same reason as on November 19, 1992.
The Respondent never obtained a passing final inspection on the Customers' roof from the Dade County Building and Zoning Department.
On November 24, 1992, the Customers sent the Respondent a Certified letter, Return Receipt requested, informing the Respondent that the roof could not pass final inspection until Dade County was provided with the product approval information and manufacturer installation specifications for the ridge vent he had installed.
On December 4, 1992, the Respondent was issued a Notice of Violation from the Dade County Building and Zoning Department for failure to provide product approval information and manufacturer installation specifications for the ridge vent that had been installed on the Customers' roof.
On December 4, 1992, the Respondent was issued a Notice of Violation from the Dade County Building and Zoning Department for failure to remove construction debris from the Customers' property.
The Respondent did not comply with either Dade County Notice of Violation and did not supply the Dade County Building and Zoning Department with the product approval information and manufacturer installation specifications for the ridge vent that had been installed on the Customers' roof. The Customers were left with a roof that did not comply with Dade County Code.
On March 26, 1993, the Customers paid a Forty Five dollar ($45.00) renewal fee to the Dade County Building and Zoning Department and had the roofing permit renewed and reissued in their own names.
On March 4, 1993, the Customers paid another contractor, Mark Mitchell, Two Hundred dollars ($200.00) to remove the ridge vent and close the hole in the roof left by the removal of the ridge vent.
On March 27, 1993, after the ridge vent had been removed, the Customers paid a Special Investigator, Ken Nash, Fifty dollars ($50.00) to perform a final inspection of the roof. On March 31, 1993, Ken Nash performed a final inspection of the roof and the roof passed inspection.
The Customers paid Steve Wooten Thirty dollars ($30.00) to remove construction debris left on their property by the Respondent and to bring their property in compliance with the Notice of Violation issued on December 4, 1992.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57, Florida Statutes.
The Florida Construction Industry Licensing Board is empowered to revoke, suspend, or otherwise discipline the license of a contractor for any of the violations itemized in Section 489.129(1), Florida Statutes.
Petitioner has the burden of proof in this license discipline case and must prove the charges contained in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Evans Packing Company v. Department of Agriculture and Consumer Services, 557 So.2d 112, 116 (Fla. 1st DCA 1989); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 1st DCA 1988).
The Petitioner's evidence must be of such weight that "it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker,
429 So.2d 797, 800 (Fla. 4th DCA 1983). In addition, the disciplinary action taken may be based only upon the offenses specifically alleged in the Administrative Complaint. See, Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984). Similarly, respondents in license discipline cases are entitled to notice of the penalty sought by the agency, and the penalty imposed cannot be more severe than the most severe potential penalty of which a respondent had notice. Williams v. Turlington, 498 So.2d 468 (Fla. 3d DCA 1986).
Count I of the Administrative Complaint charges the Respondent with violating Section 489.129(1)(m), Florida Statutes (1992 Supp.) The Petitioner voluntarily dismissed this count at the formal hearing and did not present any evidence in support of this count.
Count II of the Administrative Complaint charges the Respondent with violation of Section 489.129(1)(p), Florida Statutes (1992 Supp.). The cited statutory provision authorizes disciplinary action for the following conduct: "Proceeding on any job without obtaining applicable local building department permits and inspections." For the reasons which follow, the evidence in this case does not establish a violation of Section 489.129(1)(p), Florida Statutes (1992 Supp.). The evidence establishes that the Respondent did obtain applicable local building department permits and inspections; he merely failed to pass the final inspection. The cited statutory provision does not encompass failures to pass inspections; rather, it is limited to failure to obtain inspections. (Failures to pass inspection would appear to be addressed by other paragraphs of Section 489.129(1), Florida Statutes (1992 Supp.).) Inasmuch as the Respondent did obtain the applicable inspections, there was no violation of Section 489.129(1)(p), Florida Statutes (1992 Supp.), and Count II of the Administrative Complaint should be dismissed.
Count III of the Administrative Complaint charges the Respondent with violation of Section 489.129(1)(k), Florida Statutes (1992 Supp.). The cited statutory provision authorizes disciplinary action for the following conduct:
(k) Abandoning a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if
the contractor terminates the project without just cause or without proper notification to the prospective owner, including the reason for termination, or fails to perform work without just cause for 90 consecutive days.
The evidence in this case is sufficient to establish the violation alleged in Count III of the Administrative Complaint. The Respondent had actual knowledge that the roof did not pass final inspection and for a period of more than 90 days he failed to take any action to correct the deficiency in the roof. Such a failure constitutes abandonment within the meaning of the subject statutory provision.
Count IV of the Administrative Complaint charges the Respondent with violating Section 489.129(1)(n), Florida Statutes (1992 Supp.). The Petitioner voluntarily dismissed this count at the formal hearing and did not present any evidence in support of this count.
The Contractors Industry Licensing Board has adopted penalty guidelines in Rule 61G4-17.001, Florida Administrative Code. The rule contains the following guideline relevant to the disposition of this case:
(11) 489.129(1)(k): Abandonment. First violation, $500 to $2000 fine; repeat violation, revocation and $5000 fine.
Mitigating and aggravating circumstances to be considered in determining the appropriate penalty are set forth in Rule 6IG4-17.002, Florida Statutes, which provides:
Circumstances which may be considered for the purposes of mitigation or aggravation of penalty shall include, but are not limited to the following: (1) Monetary or other damage to
the licensee's customer, in any way associated with the violation, which damage the licensee has not relieved, as of the time the penalty
is assessed. (This provision shall not be given effect to the extent it would contravene federal bankruptcy law.) (2) Actual job site violations of building codes, or conditions exhibiting gross negligence, incompetence, or misconduct by the licensee, which have not been corrected as of the time the penalty is being assessed. (3) The severity of the offense. (4) The danger to the public. (5) The number of repetitions of offenses. (6) The number of complaints filed against the licensee. (7) The length of time the licensee has practiced. (8) The actual damage, physical or otherwise, to the licensee's customer. (9) The deterrent effect of the
penalty imposed. (10) The effect of the penalty upon the licensee's livelihood. (11) Any efforts at rehabilitation. (12) Any other mitigating or aggravating circumstances.
Application of the rules quoted above to the facts in this case leads to a conclusion that the penalty should be mitigated. In this regard consideration has especially been given to the facts that the harm or damages to the customer was relatively small, the offense was not severe, there was no danger to the public, and there was no evidence of prior offenses by or complaints against the Respondent. Under these circumstances, a fine of Two Hundred Fifty dollars ($250.00) appears to be appropriate.
The Petitioner also seeks an assessment of costs of investigation and prosecution pursuant to Rule 61G4-17.001(19), Florida Administrative Code, which reads, in pertinent part:
For any violation occurring after October 1, 1989, the Board may assess the costs of investigation and prosecution. The assessment of such costs may be made in addition to the penalties provided by these guidelines without demonstration of aggravating factors set forth in Rule 61G4-17.002.
The Administrative Complaint in this case reads as follows with regard to the penalty sought:
WHEREFORE, Petitioner respectfully requests the Construction Industry Licensing Board enter an Order imposing one or more of the following penalties: revocation or suspension of Respondent's license, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board deems appropriate.
Noticeable absent from the language quoted immediately above is any reference to an assessment of costs of investigation and prosecution. In view of cases such as Williams v. Turlington, 498 So.2d 468 (Fla. 3d DCA 1986), the failure to notify the Respondent that such assessment was being sought precludes the inclusion of such assessment as part of the remedy in this proceeding.
On the basis of all of the foregoing, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order in this case to the following effect:
DONE AND ENTERED this 3rd day of May, 1995 in Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1995.
Mr. Al C. Hufeld
Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
